R v Charlish

[2016] SASCFC 103

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CHARLISH

[2016] SASCFC 103

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Bampton)

9 September 2016

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS

Application for permission to appeal against sentence – applicant pleaded guilty to one count of trafficking in a controlled drug in a prescribed area – applicant sentenced on 11 May 2016 to 23 months and three days’ imprisonment, with a non-parole period of 10 months, suspended upon the applicant entering an 18-month good behaviour bond – whether sentence was manifestly excessive – whether Judge erred in evaluating the seriousness of the offence by having regard to the applicant’s possession of two bags of cocaine that were not the subject of a charge – whether Judge erred in recording a conviction and not utilising s 16 or s 39 of the Criminal Law (Sentencing) Act 1988.

HELD per Bampton J (Kourakis CJ and Vanstone J agreeing), dismissing the application:

1. The Judge did not make improper use of the additional two bags of cocaine.

2. It is not arguable that the sentence of imprisonment imposed was manifestly excessive.  A penalty other than imprisonment could not properly have been imposed.

3. Permission to appeal refused.

Controlled Substances Act 1984 (SA) s 32, s 52; Criminal Law (Sentencing) Act 1988 (SA) s 16, s 39; Liquor Licensing Act 1997 (SA), referred to.
House v The King (1936) 55 CLR 499, considered.

R v CHARLISH
[2016] SASCFC 103

Court of Criminal Appeal:  Kourakis CJ, Vanstone and Bampton JJ

1. KOURAKIS CJ:    On 17 August 2016 I joined in the order refusing the applicant permission to appeal for the reasons given by Bampton J.

2. VANSTONE J:     I agree with the reasons written by Bampton J.

3. BAMPTON J: The applicant pleaded guilty in the Magistrates Court to one count of trafficking in a controlled drug in a prescribed area contrary to s 32(2a) of the Controlled Substances Act 1984 (SA) (the CSA). The matter was committed to the District Court for sentence and, on 11 May 2016, the applicant was sentenced to a head sentence of 23 months and three days’ imprisonment with a non-parole period of ten months. The sentence was suspended upon the applicant entering into a bond to be of good behaviour for 18 months.

4. The applicant applied for permission to appeal on the ground that the sentence is manifestly excessive.  Permission to appeal was refused by a single Judge of this Court.  The applicant renewed his application for permission. 

5. The thrust of the complaint against the sentence is that the sentencing Judge erred in finding that his offending was too serious to proceed under either s 16 or s 39 of the Criminal Law (Sentencing) Act 1988 (SA) (the CLSA) and not record a conviction.

6. On 17 August 2016, I joined the Court in refusing permission to appeal.  These are my reasons.

   Background

7. In the early hours of 18 July 2015, the applicant was at the Rocket Bar in the Electric Circus nightclub in Hindley Street.  The Electric Circus nightclub is premises in respect of which an entertainment venue licence is in force under the Liquor Licensing Act 1997 (SA) (the Liquor Licensing Act). It is, pursuant to s 32(6) of the CSA, a prescribed area. The CSA provides that “prescribed area” includes prescribed licensed premises. Premises in respect of which an entertainment venue licence is in force under the Liquor Licensing Act are defined to be prescribed licensed premises.

8. In July 2015, the applicant was a recreational user of cocaine.  He was approached by his friend, Nicholas Chua, with whom he had previously ‘partied’, that is, engaged in recreational drug use.  Mr Chua asked him whether he was ‘partying’ that night and whether he had any drugs on him.  After agreeing to sell a bag of cocaine to Mr Chua for $350, the applicant and Mr Chua walked to an ATM located at the rear of the nightclub.  Mr Chua withdrew money from the ATM. 

9. Three plain clothes police officers stationed with the Licencing Enforcement Branch on licencing duties at the Rocket Bar were standing a short distance away from the applicant and Mr Chua.  One of the officers saw Mr Chua hand the applicant a number of $50 notes. The officer then noted Mr Chua was holding a small clear resealable plastic bag containing a white substance.  The officer approached the applicant who was holding the $50 notes in his hand.  The officer also saw Mr Chua drop the bag he had been holding to the ground.

10. The applicant was asked by police to empty his pockets. He placed his property, which included a mobile phone, a wallet and an empty cigarette packet, on a ledge in the nightclub. A search of the applicant’s personal property was conducted pursuant to s 52 of the CSA. Police located two small clear resealable bags containing a white substance. One bag was found in the applicant’s wallet and the other in the empty cigarette packet. The applicant was charged with the count of trafficking and served by police with an order pursuant to the Liquor Licensing Act barring him from licensed premises.

11. The substance in the plastic bag dropped to the ground by Mr Chua is the subject of the trafficking charge.  Upon forensic analysis, the substance was found to weigh 0.70 grams and to contain cocaine.

12. The substances in the two other bags located on the applicant were also analysed.  One was found to weigh 0.64 grams and the other 0.70 grams.  Both bags contained cocaine.

13. The applicant was originally charged with two counts of trafficking.  The first charge related to the bag of cocaine sold to Mr Chua and the second related to the other two bags in the applicant’s possession.  It appears that on the day of his committal for sentence, the prosecution agreed to abandon the second count upon the applicant pleading guilty to the first.  Accordingly, he was not to be sentenced on the basis that he trafficked in all three bags.  On the other hand, that he possessed three bags was not irrelevant to the sentencing Judge’s assessment of the seriousness of the offence.

    The sentence

14. At the time of sentencing, the applicant was aged 31 years and had no criminal history.  He was a person of good character, who, it was submitted, continued to make a number of significant contributions to his local community.  Further, it was submitted that since his arrest he had engaged in meaningful rehabilitation programs and had ceased to use cocaine entirely.

15. In sentencing, the Judge accepted that there was little by way of commerciality involved in the applicant’s sale, that it was isolated, and that the transaction bordered on what might have been a supply. He accepted that a conviction would cause the applicant and his business partner significant difficulties. He acknowledged in his remarks that the applicant was a candidate for consideration of an order under s 16 of the CLSA because of his community services and unblemished record.

16. However, the Judge had stressed during sentencing submissions that the fact remained that the applicant was not “some immature youth” and that he was 31 years of age. His Honour said in response to defence counsel’s submission that it was open to him to utilise s 16 or s 39 of the CLSA:

    Your difficulty, of course, is that even with his good background and everything else, Mr Charlish turns up, he goes to licensed premises, he takes with him to licensed premises cocaine. It’s not a question of giving it to a friend or supplying it to someone who asked for it. He sells the cocaine for $350, Mr Chua goes around to an ATM to get the cash, and it’s one of those cases where it’s a recreational drug not just given away, but sold at licensed premises. Not a happy place to be from your point of view, I think, Mr Henderson.

17. The Judge determined the applicant’s conduct in selling cocaine in licensed premises was too serious to proceed under either s 16 or s 39 of the CLSA and that it was inevitable, despite his unblemished record and community service, that a conviction be recorded.

18. The Judge characterised the offending as the type of offending that is widespread and difficult to detect and said that it was “outrageous to attend at a licensed premises with three bags of cocaine in your possession”.  The Judge stated that the recording of a conviction was, at the very least, an essential part of the deterrent aspect of a sentence for this type of drug offence. 

19. The Judge proceeded to sentence the applicant on the basis that his offending fell at the lowest level for an offence of trafficking.  The Judge took into account the applicant’s unblemished record and his community service.  He deducted 30 per cent on account of the applicant’s early plea from a starting point of two years and nine months’ imprisonment. A sentence of 23 months and three days was imposed and a “very low non-parole period of 10 months” fixed.  His Honour suspended that sentence having concluded that it was plain from the applicant’s personal circumstances that there was “abundant good reason” to do so.

    Particulars of the ground of appeal

20. There are two particulars to the ground of appeal that the sentence was manifestly excessive. First, the applicant complains that the Judge erred as a matter of law in evaluating the seriousness of the offence by having regard to his possession of the two bags of cocaine in licensed premises that were not the subject of a charge. Secondly, the applicant contends that the Judge erred in finding that his offending was too serious to proceed under either s 16 or s 39 of the CLSA. He complains the Judge placed too much weight upon the need for personal and general deterrence and gave insufficient weight to the impact that a recording of a conviction would have upon him.

    The use made by the Judge of the two bags of cocaine not the subject of the charge

21. As stated above, the two bags of cocaine that the applicant produced from his pockets were not the subject of any charge.  They were, however, not irrelevant to the offence of which the applicant was convicted.  The applicant was only in a position to sell the bag he did because he took more than he needed for his own use into the licensed premises.

22. The Judge did not make improper use of the fact of the possession of the two additional bags.  His Honour did refer to the presence of the two other bags and the value of the drugs as a whole.  I agree with the respondent’s submission that the sentencing remarks reveal that the Judge only sentenced the applicant for the drugs that were the subject of the charge, that is, the contents of the bag that was dropped to the ground by Mr Chua.  His Honour repeatedly referred to “isolated offending” and the fact that the applicant sold “some” of the drugs he had brought into Rocket Bar.  The applicant’s complaint is not arguable.

    Imprisonment was not manifestly excessive

23. The sale of drugs in a prescribed area like the Rocket Bar is serious offending.  The maximum penalty for trafficking in a prescribed area is a fine of $75,000 or imprisonment for 15 years, or both.  By comparison, the maximum penalty for trafficking committed other than in a prescribed area is a fine of $50,000 or imprisonment for 10 years, or both.  This indicates that Parliament intended that offences of trafficking in prescribed areas should be regarded seriously, and that substantial sentences should be imposed.

24. General deterrence is a very important consideration when sentencing for this type of offending.

25. The Judge had the benefit of written and oral submissions regarding the applicant’s personal circumstances.  His Honour carefully considered the personal circumstances of the applicant, the need for general and personal deterrence.  Another judge might have imposed a shorter term of imprisonment.   However, it is not arguable that the sentence of imprisonment imposed in this case was manifestly excessive.  A penalty other than imprisonment could not properly have been imposed in this case.

    The recording of the conviction

26. The applicant complains that the sentencing Judge failed to exercise the discretion available pursuant to s 16 of the CLSA which provides that:

    Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—

    (a)     that the defendant is unlikely to commit such an offence again; and

    (b)     that, having regard to—

    (i)the character, antecedents, age or physical or mental condition of the defendant; or

    (ii)the fact that the offence was trifling; or

    (iii)any other extenuating circumstances,

    good reason exists for not recording a conviction,

    the court may impose the penalty without recording a conviction.

27. The applicant also complains that the Judge erred in not proceeding pursuant to s 39 of the CLSA to discharge him without recording a conviction to be of good behaviour.

28. Section 39 of the CLSA provides that:

    (1)Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—

    (a)     to be of good behaviour; and

    (ab)   to comply with the other conditions (if any) included in the bond; and

    (b)     if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond. 

29. A sentencing judge must intend to impose a fine or a sentence of community service, or both, before proceeding further and considering whether there is good reason for not recording a conviction pursuant to s 16 of the CLSA. Section 39 of the CLSA can only be exercised if the Court decides not to impose a penalty.

30. I have already found that it is not arguable that the Judge erred in imposing a sentence of imprisonment. It follows that it is also unarguable that the Judge should not have recorded a conviction pursuant to s 16 or s 39 of the CLSA.

    Conclusion

31. It is not arguable that the Judge has acted upon a wrong principle, taken into account an extraneous or irrelevant consideration, failed to take into account a material consideration, or acted upon a mistaken view of the facts or passed a sentence which is manifestly excessive.[1]

    [1]    House v The King (1936) 55 CLR 499 at 504-505.

32. Permission to appeal is refused.